Plain Dealer fileA federal appeals court panel in Cincinnati Tuesday brought back a lawsuit by a Bay Village firefighter who was suspended for nine days after publicly linking the drowning death of a child to city budget cuts.

BAY VILLAGE, Ohio -- A federal appeals court panel in Cincinnati Tuesday brought back a lawsuit by a Bay Village firefighter who was suspended for nine days after publicly linking the drowning death of a child to city budget cuts.

A three-judge panel for the 6th U.S. Circuit Court of Appeals unanimously reinstated the lawsuit brought by veteran firefighter Ron Westmoreland against Bay Village. In doing so, the appeals court panel overturned a U.S. district court judge in Cleveland who rejected Westmoreland's lawsuit seeking unspecified damages from the city.

The lawsuit is expected to go back to the District Court's Northern District of Ohio for trial, though Bay Village Law Director Gary Ebert said the city is considering other options. It could petition to have the entire appeals court consider the issue or appeal directly to the Ohio Supreme Court, he said.

Ebert said the city would decide soon, perhaps as early as Wednesday, on its response. "We just got the opinion today," he said. "We're looking through it right now."

Avery Friedman, lawyer for the firefighter, said the appeals court panel's decision was a victory for free speech.

"It's an extraordinary case of a heroic firefighter standing up and saying, 'You know, when you cut budgets, you better be aware of the consequences,' " Friedman said. "That's exactly what citizens are supposed to be doing."

The case dates to spring 2008, when budget problems led to a substantial reduction in overtime in the 24-person Bay Village Fire Department and a decision by Mayor Deborah Sutherland to disband the dive team effective in June. The city's fire chief had recommended the move because the team was used less than once a year and cost as much as $12,000 annually in overtime.

Within three months, two boys drown at nearby beaches -- a 12-year-old in August and a 7-year-old in September.

Westmoreland was among the first on the scene at Huntington Beach on Sept. 1 when the younger boy had disappeared underwater. He called for help from dive teams from Avon Lake and Rocky River.

Two weeks later, appearing in plain clothes but identifying himself as a firefighter, he spoke for eight minutes in the public comments portion of a City Council meeting, blasting city officials for their budget cuts.

"It is my personal opinion, this council, this administration is partly responsible for condemning that child to death," he said. "That child never had a chance . . . . We could not go get this kid."

The following month, Mayor Sutherland suspended Westmoreland for nine days -- three 24-hour shifts -- saying that his appearance before council constituted insubordination and that his statements were not "supported by the facts."

Westmoreland appealed the discipline, but an arbitrator upheld the suspension, saying his speech was not constitutionally protected. A U.S. District Court judge then rejected Westmoreland's lawsuit seeking unspecified damages from the city.

But in sending the case back to the lower court, the Cincinnati appeals panel said the city must prove that Westmoreland's claims were false and that he knowingly or recklessly made false statements. The proceedings should take into account whether Westmoreland's comments as a citizen outweighed the city's interest in promoting its public services.

Despite Westmoreland's "inflammatory rhetoric," the city had not shown that it was intentionally or recklessly false for the firefighter "to claim that the rescue effort was hamstrung because Bay Village no longer had a dive team," wrote Appeals Court Judge Ralph B. Guy Jr.

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